On January 11, 2019, the National Labor Relations Board issued a decision narrowing the scope of what qualifies as “protected concerted activity” under the National Labor Relations Act. With this decision, the Board reversed course on a long line of Obama-era cases expanding  the scope of when an employee’s complaints could be considered to be protected concerted activity, under the Act. The Board also stated its desire to overrule other cases that previously expanded the definition of protected activity.

Continue Reading NLRB Narrows Definition of “Protected Concerted Activity” in a Decision that Benefits Both Union and Non-Union Employers

On January 25, the National Labor Relations Board (NLRB) reversed an Obama-era decision addressing the standard for distinguishing between independent contractors and employees. The prior NLRB held that if a worker is economically dependent on the business providing the work (i.e., the business provides most or all of the work done by that worker), then that person is most likely an employee, not an independent contractor. The Trump-appointed NLRB majority reversed that “economic dependence” standard in its recent Super Shuttle decision, 367 NLRB No. 75 (Jan. 25, 2019), holding instead that it will analyze independent contractor vs. employee status using the traditional 10-factor common law test viewed through the prism of “entrepreneurial opportunity.”

That means the Trump Board will likely find independent contractor (and not employee) status if the putative contractor has the independence to make more or less by doing more or less either within the contractual relationship at issue or with other businesses (i.e., a broad “scope for entrepreneurial initiative”). The more control a single business exercises over a putative contractor, the narrower the scope for enhanced money-making initiative, and the more likely the NLRB will find employee status.

Today, the United States Supreme Court ruled in Epic Systems Corp. v. Lewis, No. 16-285 that employers could lawfully require employees to waive their rights to pursue employment-related class actions through arbitration agreements providing for individualized proceedings. In a 5-4 decision, the Court ruled that such waivers do not violate the National Labor Relations Act.

Continue Reading Of Elephants and Mouseholes: Supreme Court Holds Employers Can Lawfully Require Class Action Waivers in Arbitration Agreements

Human Resource and Labor Relations professionals (HR/LR) normally take the lead on workplace investigations of employee misconduct. Given that, they may also bear the blame for investigations that result in adverse employment actions that do not withstand litigation scrutiny. If a current or former employee challenges an adverse employment action via an EEOC or NLRB charge, a DOL complaint, a CBA grievance, or court action, the employer incurs significant expense and disruption simply defending the action. The employer’s exposure increases exponentially if the employer loses the case on the merits before a regulator or court. Consequently, HR/LR should devote sufficient time and attention to workplace investigations to avoid challenge in the first place, where possible, and to ensure the best chance of winning on the merits if a challenge does take place. But where to look for guidance? This blog answers that question and provides a checklist for HR/LR to follow to conduct employee misconduct investigations that will withstand litigation scrutiny.

Continue Reading Checklist for Workplace Investigations that Survive Litigation Scrutiny

On May 3, 2018, at our 15th Annual Labor Relations Conference, both the current and immediate-past Chairmen of the National Labor Relations Board  will provide in-house counsel and human resources and labor relations professionals a special opportunity to see “behind the curtain.” Hear direct from these Presidential-appointees about where the NLRB has been and where it is going. Co-hosted with the Arizona Society for Human Resources Management at the Phoenician in Scottsdale, this full-day program features speakers from Steptoe’s Labor & Employment group, as well as:

Click here for more information, the agenda, and to register. We hope to see you there.

Yesterday, the National Labor Relations Board vacated Hy-Brand Industrial Contractors amidst controversy surrounding Member Bill Emanuel’s participation in the decision. That decision leaves intact the Obama-board’s expanded joint employer standard from Browning-Ferris Industries of California, at least until the Board finds another vehicle to overturn the case.

The NLRB’s Office of Inspector General issued a report finding that Member Emanuel should have recused himself from the Hy-Brand decision in light of the close connection between his prior law firm, which represented one of the parties in Browning-Ferris, and the issues in Hy-Brand.  The Board noted that report when it issued its Order vacating the decision.

In its fifth major decision in five days, the Board overruled a 2016 decision that limited what changes to terms and conditions of employment that an employer can make without bargaining.  In so doing, the Board returned to a broader view of what it means to maintain the “status quo.”  In Raytheon Network Centric Systems, 365 NLRB No. 161 (Dec. 15, 2017), the Board held that employers do not need to bargain when “the employer takes actions that are not materially different from what it has done in the past.”  In Raytheon, that meant the employer lawfully modified employee medical benefit plans after the CBA expired because the employer had made similar modifications annually for 11 years.

Continue Reading NLRB: No Duty to Bargain Over Routine Changes to Health Plans

Late Friday evening, the NLRB overruled Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), the decision that permitted unions to organize “micro-units” of employees.  In PCC Structurals, Inc., 365 NLRB No. 160, the Board returned to “the traditional community of interest standard” for evaluating the appropriateness of a petitioned-for bargaining unit.

Continue Reading NLRB Overrules Specialty Healthcare

Today, the NLRB issued two landmark cases reversing precedent on the Board’s test for work rules and joint employment. In The Boeing Company, 365 NLRB No. 154, the Board reversed a 2004 decision that prior Boards used to find unlawful “a large number of common-sense work rules and requirements that most people would reasonably expect every employer to maintain.” In Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156, the Board overruled the Browning-Ferris joint-employment test and returned to requiring direct control over essential terms and conditions of employment before it will find joint employment status.

Continue Reading NLRB Changes Course on Work Rules and Joint Employment